Intellect or Insanity, Jonathan Klinger's Blog

0.
Terms and Conditions (and Privacy Policies) are a bitch. I know, because I write them for a living. Yes, it’s me who made you agree to provide that website with an “irrevocable, unlimited, commercial right to access your personal information stored in the service” just so they could fight the spam they tackle on a day-by-day basis. I’m also the guy that these websites call when some random schmuck send them a cease-and-desist letter claiming they hold the copyright on the word “party” or something like that.

1.
Lawyers face a terrible problem, most users don’t read the terms and conditions; this causes them to be unenforceable in some cases (DeFontes v. Dell, Inc., No. 2004-137, 2009, more here) and lawyers tend to create presumptions of acceptance in different terms, which are always uncertain because they are never tested in court. Some lawyers tend to add the “I Agree” button only at the end of the document, some require email confirmation and some just add an “I Agree” checkbox.

2.
In comes CommonTerms. CommonTerms tries to simplify the reading of hard to read legal documents by adding nice icons about how the service providers use your data, if they are allowed to revise the terms for any reason or other information. In order to do so, Common Terms analyzes existing agreements and attempts to draft a database of practices. While their idea is nice, it’s yet to be perfect for the end-user because he needs to know such icons exist and actually read the terms for it.

3.
In comes my solution; however it requires some cooperation from lawyers. Lawyers could use XML tags or RDF, where lawyers could tag their Terms and Conditions with specific tags, such as “Shares your user generated content with 3rd parties” or “allows other users to create derivative works of content you upload”. In terms of Privacy Policies, it may be even easier, as a privacy policy is a set of specific questions, where the Icons just may show “uses 3rd party cookies” or “profiles you and sends information to advertisers”. Now, once the specific list of terms are defined, we can actually create a tag generator so the tech guys could mark the site; then, like websites put the Truste seal, they could mark their website in terms of user-friendliness.

4.
After we get the marking down, we still have some problems, but all are solvable: Self-Enforcement and Information, as well as comparing sites in terms of their Terms and Conditions. The other factor may be creating common grounds for tagging and creating child-friendly filters or other uses that users may do to understand what happens when they post their content in websites: is it sold, reused, mixed, shares or just removed after 36 hours.

5.
The thing is, that as a lawyer, I cannot code and I cannot enforce these things on people: not on other lawyers and not on my clients (or other lawyers’ clients). So, in order to make this happen, a demand has to come from the public, and that’s you.

You also appreciate reading about the EULA Generator.

0.
The Wall Street Journal’s findings that Facebook applications share personal and identifiable information with 3rd parties and advertising networks was not surprising though it echoed in the mediashpere and even made some changes coerced the removal of some applications of the popular social network; However, the disturbing part was what Facebook did not do, and that is to remove Zynga, Facebook’s new strategic partner and the developer of the popular game FarmVille.

1.
In brief, the Wall Street Journal’s findings were that most of the popular applications in the social network transmit or convey information to advertising networks and 3rd parties. These activities go against Facebook’s clause 8 to the developer policy that prohibit the transmission of any personal information obtained from Facebook to an advertising network. The prohibition, of course, is not due to worries on your privacy, but because Facebook wants its monopoly over advertising in the network. Following this publication, Facebook removed some applications by the popular developer, LOLapps, who was one of those who conveyed information and restored it after a few hours (see LOLapps release).

2.
But the removal did not inherently cause from conveying information; but as the Inquirer states, the information was passed because of the way the internet was build, where in every click information about the referring page is transmitted, so at least in some of the causes, advertising companies received the information solely because they knew what was the referring page. On the other hand, one can say that by reasonable steps this security breach would have been fixed and therefore allowing reasonable measures to be taken is one part of security.

3.
Up to here there’s nothing new: Facebook removes a certain application because it infringes on your privacy (and Facebook’s ability to monetize by being the exclusive designated advertiser) and וfour and a half million dollars go down the drain because they solely rely on the Zuckerberg family’s whims, where they determine the laws of the game. However, what needs to be learned is what Facebook did not do, and how it relates to your privacy.

4.
The question why Zynga was not removed from Facebook is the exact signaling for the reason why Facebook removed LOLapps; both applications infringed the same developer agreement and your privacy, however, Zynga signed a commercial agreement with Facebook and uses the Facebook currency as its payment method and promotes Facebook’s business. This was a signaling to other developers: either migrate to Facebook’s services and be a part of the Zuckerberg family’s ecosystem, or find yourselves subject to our whims. Facebook’s commercial dependency on Zynga doesn’t allow Facebook’s interests to remove it; and LOLapps? it can seek its friends elsewhere.

[Originally in Hebrew]

[Also in Hebrew]

0.

“You acknowledge and agree that Facebook may at any time in its sole discretion, without liability, with or without cause and with or without notice: (a) terminate this Agreement; (b) terminate or suspend your access to Facebook Platform, Facebook Properties and/or the Facebook Site or any portion or feature of any of them; and/or (c) remove, block, delete or disable access to your Facebook Platform Applications and/or or any Facebook Platform Application Content, including without limitation if we determine, in our sole discretion, that your Facebook Platform Application or any Facebook Platform Application Content is unsuitable for Facebook Platform, Facebook Site or Facebook Users (…)

1.
While the blogoshpere and the technological sections in the newspapers are running around the Web 2.0 buzz (and some of the 3.0 buzz as well), We keep forgetting where the real bubble for this technology lies. When Om Malik explained yesterday at TWS2008 that advertisers are the ones impeding the net from developing and dot com startups that develop Facebook applications without any business models get millions of dollars in funding, there’s only one question: when will people realise what Facebook‘s real business model?

2.
Google shut down a few blogs which opposed Barack Obama, possibly because Obama supporters tagged them as spam. It was ll executed by automatic systems where the censorship was made by private entities, but it doesn’t actually matter, as Blogspot’s terms of service state that “Google may, in its sole discretion, at any time and for any reason, terminate the Service, terminate this Agreement, or suspend or terminate your account”.

3.
Constitutional Law is probably dead and irrelevant; what was the private sector until recently  was settled in under “Private Law” or “Civil Law”, but today everything changed: Companies that develop applications for social networks or webservices are subjected to the new constitutional law, the Terms of Service.: The problem begins when stable business models that companies build upon and get their funding due to them are based on social networks’ grace. This is not a stable agreement, but a unilateral agreement that grants the social network (or the search engine) an exclusive right to terminate the agreement and prevent the company from operating. (And it’s important to understand that when I relate to facebook in this post I also mean any other social network or webservice like Twitter that allows 3rd party applications)
4.
Now, some might say that Facebook’s income and  value are derived from the amount of applications it has. Cynicists may say something completely different: Facebook’s value is derived from its ability to monetize the applications that those will be able to run on the platform.
Mark Zuckerberg, Facebook’s founder, photo by KK+ under cc-by-nc-sa license.

5.
In a year or two Facebook’s shareholders will come to their senses and start asking money from the leading hundred applications, as they are allowed to do. Their policy would be similar to this: An application with less than a million users may run freely, but once you obtained a million users, you’ll pay us one US$ per user. That’s fair, isn’t it? And then what? will these companies shut down and go home? not really.

6.
It’s crucial to understand that when you develop a Facebook application or any other social network based application, you’re writing your source code on ice; it’s more than reasonable to assume that Facebook won’t charge you anything and will never shut you down. The problem starts when you want to establish a business model on something that’s more than “more than reasonable” (like investing your pension funds). That’s why, like you wouldn’t deploy a real product without contracting your deployment contractor, you really should consider doing the same with Facebook.